Organizational Use of Social Media: Boon or Burden?

Organizational use of social media has evolved precipitously from the early days when social media was viewed as little more than a novel marketing concept on the fringe of broader traditional advertising campaigns.

However, with the increase in innovation comes concern over the extent to which increased organizational activities on social media may expose the organization to potential civil liability. Indeed, organizational use of social media has been described by some as a “virtual Pandora’s Box,” which is at once an exciting boon for business but filled to the brim with the potential for legal exposure.1 This article explores some of the most common insurance coverage issues organizations are likely to experience as their use of social media continues to expand and evolve. Although the article focuses on organizational issues, many of the principles described are equally applicable to coverage issues which may arise from an individual’s use of social media under consumer-focused policies.

As social media has become increasingly ingrained in the average consumer’s life, organizations and commercial entities have developed innovative ways to leverage their own social media presence as a marketing tool and as a means by which they can communicate directly with the consumer. For many organizations, this evolution means nothing more than using social media as an analogue to traditional advertising concepts, such as banner and sidebar ads, audio and video spots, product placement, and endorsement deals. For others, social media is at the core of the organization’s operations. Indeed, it is not uncommon for the world’s leading corporations to devote entire teams to the development and use of social media. Organizations running the gamut from national governments and major religious institutions, to startup social activist groups and mom-and-pop shops have found creative ways to use social media for endeavors ranging from disaster and emergency response, security at major events, breaking news coverage, broadscale organizational efforts, get out the word efforts, and customer service response centers.2

But as is all too often the case with innovation, the increase in organizational use of social media has been accompanied by litigation presenting novel legal questions on a variety of social media-related issues. And with the increase in litigation have come questions over the degree to which Commercial General Liability (“CGL”) insurance—the principles of which were developed decades before pioneering social media platforms such as MySpace and Friendster emerged—can keep up with ever evolving trends in the social media landscape. Fortunately, the legal theories under which social media-related lawsuits most typically arise are quite familiar. Libel, slander, copyright infringement, use of another’s advertising idea, and invasion of privacy all remain the stalwarts of the industry.3 Though courts throughout the nation have struggled at times to apply CGL’s pre-internet principles to modern day realities, traditional common law principles remain at the core of resolving these seemingly novel issues. Accordingly, and because courts have seemed inclined to require CGL carriers to provide coverage where the issues involved resemble otherwise traditional common law principles, organizations seeking to navigate the ever-evolving scope and substance of social-media related claims must keep traditional common law concepts in mind.

As a preliminary matter, social media comes with certain fundamental characteristics about which organizations must remain cognizant when developing their social media strategies. Indeed, the very feature of social media to which organizations are drawn most—the potential for cheap and instant access to 73% of the country4—necessarily implies that when a potentially problematic tweet or post catches steam, it stands to be shared far and wide and memorialized for all to see. Given the inherently “viral” nature of social media, plaintiffs are often well positioned to establish special damages by virtue of the far-reaching consequences of social media exposure alone. This is particularly problematic in libel-based defamation claims, which require proof of special damages as an element of the claim.5 Predictably, lawsuits alleging libel have grown in popularity as organizational use of social media has evolved,6 and given the wide array of theories under which such claims have been successful, they are perhaps the most problematic.7 Indeed, libel claims arising from organizational use of social media have become so common that that the phrase “Twibel”—a portmanteau of “Twitter” and “libel”—has emerged as a new favorite in the legal lexicon.

But claims arising from organizational use of social media are not limited to defamation alone. In jurisdictions that recognize the tort of invasion of privacy, courts have required CGL carriers to provide coverage in causes of action resulting from an insured’s role in the release of a third-party’s confidential information online.8 However, where the invasion of privacy has resulted from intentional conduct on the part of a third-party—such as a data breach—courts are divided on the issue of whether any potential negligence on the part of the insured satisfies the “publication” requirement of the invasion of privacy claim.9

Courts have also found that CGL coverage for so-called “advertising ideas” extends to social media-related claims.10 While these issues commonly resemble traditional trademark and trade dress infringement claims,11 some courts have interpreted Coverage B to encompass claims arising from organizations’ alleged infringement on another’s advertising strategy more broadly.12 Further, courts have used advertising ideas coverage to address publicity rights cases13 and, under certain circumstances, to encompass claims arising from patents related to internet and website functionality.14 Claims alleging intellectual property infringement have also commonly been held to apply to social media conduct under Coverage B’s express coverage for copyright, trade dress, and slogan infringement.15 Such claims are particularly likely to arise where an organization adopts content created by its social media followers without permission to do so.16

Importantly, recent revisions to CGL forms expressly contemplate certain social media conduct as “advertisement” for the purpose of coverage arising from advertising idea and infringement-related claims. Because these forms often set forth specific definitions of what constitutes an advertisement in the context of social media, organizations must pay close attention to what types of social media activity are and are not covered when developing their social media strategies.17

One interesting evolution in advertising in which such definitions have played an important role is the advent of an “influencer” industry, which has raised novel questions as to the degree to which a paid influencer’s representations of a product or infringement upon another’s intellectual property may constitute an advertisement for Coverage B purposes.18

Finally, it is worth noting that while Coverage B has been interpreted to cover a broad variety of claims arising from an organization’s use of social media, evolutions in policy exclusions and coverage limits may in some cases defeat coverage for social media-related claims.19 In particular, exclusions applicable to prior publication, intellectual property, media and internet, electronic chatrooms and bulletin boards, and unauthorized use of another’s name exclusions all stand to be implicated. However, because exclusions vary from policy to policy and are ever-evolving, a detailed examination of their potential broad applicability to social media-related claims generally is outside the scope of this article.

As this article demonstrates, organizational use of social media has emerged as a lucrative means by which organizations can market themselves and connect individually with their market base. However, as the means by which organizations use social media continues to evolve, so too have the legal theories under which social media-related claims are raised. However, with careful planning and an eye toward trends in the industry and the availability of increasingly diverse coverage options, organizations can make the most of the social media boon without falling prey to its potential pitfalls.

  1. Susan Evans Jennings, Justin R. Blount, & M. Gail Weatherly, Social Media—A Virtual Pandora’s Box: Prevalence, Possible  Legal Liabilities, and Policies, 77(1) Business & Professional Communication Quarterly, 96 (2014).

  2. See generally Matteo Tonello, Corporate Use of Social Media, Harvard Law School Forum on Corporate Governance, May 17, 2016.

  3. Although outside the scope of this article, organizational use of social media can under certain circumstances implicate federal regulatory issues. See Lord & Taylor Settles FTC Charges It Deceived Consumers Through Paid Article in an Online Fashion Magazine and Paid Instagram Posts by 50 “Fashion Influencers”, Federal Trade Commission (Mar. 15, 2016) https://www.ftc. gov/news-events/press-releases/2016/03/lord-taylor-settles-ftc-charges-it-deceived-consumers-through.

  4. See Social Media Fact Sheet, Pew Research, https://www.pewresearch.org/internet/fact-sheet/social-media/.

  5. See Restatement (Second) of Torts § 558 (describing the elements of defamation as “(1) a false factual statement concerning the plaintiff (2) published to a third-party (3) that is made either negligently or with malice, and (4) results in special damages”).

  6. See Raymond Placid, Judy Wynekoop, & Roger W. Feicht, Twibel: The Intersection of Twitter & Libel, 90 Fl. Bar J. 8, 32 (Sep./ Oct. 2016).

  7. See, e.g.AIX Specialty Ins. Co. v. Big Limo, Inc., Case No. 3:21-cv-08, 2021 WL 2708902, at *4–5 (S.D. Ohio July 1, 2021) (holding that an insurer had a duty to defend its insured nightclub under a theory of defamation where the nightclub had allegedly used a model’s picture in a Facebook post to promote a cabaret); Jar Labs. v. Great Am. E&S Ins. Co., 945 F. Supp. 2d 937 (N.D. Ill. 2013) (holding that an insurer had a duty to defend its insured under a theory of implied disparagement where the insured had published a Facebook post implicitly representing a competitor’s products in a false and misleading way).

  8. See State Farm Gen Ins. Co. v. JR’s Frames, Inc., 181 Cal. App. 4th 429, 448 (2010); Travelers Indem. Co. of Am. v. Portal Healthcare Sols., LLC, 644 F. App’x 245 (4th Cir. (Va.) 2016).

  9. See, e.g., St. Paul Fire & Marine Ins. Co. v. Rosen Millennium, Inc., 2018 WL 4732718, at *3 (M.D. Fla. Sept. 28, 2018); Innovak Int’l v. Hanover Ins. Co., 280 F. Supp. 3d 1340 (M.D. Fla. 2017); Zurich Am. Ins. Co. v. Sony Corp. of Am., 2014 WL 8382554 (N.Y. Sup. Ct. Feb. 21, 2014) (denying claims for invasion of privacy where the publication at issue arose from intentional third-party conduct); but see Landry’s Inc. v. Ins. Co. of the State of Penn., 4 4th 366, 270 (5th Cir. (Tex.) 2021) (requiring an insurer to defend against publication of personally identifiable information resulting from a data breach).

  10. See Atlantic Mut. Ins. Co. v. Badger Medical Supply Co., 528 N.W.2d 486, 490 (Wis. App. 1995) (defining “advertising idea” as “an idea for calling public attention to a product or business, especially by proclaiming desirable qualities so as to increase sales or patronage”).

  11. See Cat Internet Servs., Inc. v. Providence Washington Ins. Co., 333 F.3d 138, 142 (3rd Cir. (Penn.) 2003).

  12. See Great American Inc. Co. v. Beyond Gravity Media, Inc., Case No. 3:20-cv-53, 2021 WL 4192738 (S.D. Tex. Sept. 15, 2021) (finding that an insured’s use of the claimant’s martial arts-themed advertising strategy was subject to CGL coverage); See also Native Am. Arts, Inc. v. Hartford Cas. Ins. Co., 435 F.3d 729 (7th Cir. 2006); Gustafson v. Am. Family Mut. Ins. Co., 901 F. Supp. 2d 1289 (D. Colo. 2012).

  13. See Air Eng., Inc. v. Industrial Air Power, LLC, 828 N.W.2d 565 (Wis. App. 2013); Hyundai Motor Am. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., 600 F.3d 1092 (9th Cir. (Cal.) 2010); but see Holyoke Mut’l Ins. Co. in Salem v. Vibram USA Inc., 106 N.E.3d 572 (Mass. 2018) (rejecting claim that Coverage B provides coverage for traditional patent infringement claim).

  14. See Gencor Indus, Inc. v. Wausau Underwriters Ins. Co., 857 F. Supp. 1560 (M.D. Fla. 1994).

  15. See generally Daniel I. Graham Jr. & Thomas W. Arvanitis, Social Media Risks & “Personal & Advertising Injury” Coverage Issues, DRI Insurance Coverage & Practice Symposium, December 9–10, 2021. A special thanks to the authors for their extensive research, from which this article benefits considerably.

  16. See Stross v. Redfin Corp., 730 Fed. App’x 198 (5th Cir. 2018).

  17. See Graham & Arvanitis, supra, at 10–11.

  18. Michael B. Rush, Social Media Advertising Under CGL Coverage B, The National Law Review, May 21, 2019.

  19. See Graham & Arvanitis, supra, at 11.

This article was written by Christopher S. Etheredge of Steptoe & Johnson law firm. For more articles about social media use, please click here.

New Poll Underscores Growing Support for National Data Privacy Legislation

Over half of all Americans would support a federal data privacy law, according to a recent poll from Politico and Morning Consult. The poll found that 56 percent of registered voters would either strongly or somewhat support a proposal to “make it illegal for social media companies to use personal data to recommend content via algorithms.” Democrats were most likely to support the proposal at 62 percent, compared to 54 percent of Republicans and 50 percent of Independents. Still, the numbers may show that bipartisan action is possible.

The poll is indicative of American’s increasing data privacy awareness and concerns. Colorado, Virginia, and California all passed or updated data privacy laws within the last year, and nearly every state is considering similar legislation. Additionally, Congress held several high-profile hearings last year soliciting testimony from several tech industry leaders and whistleblower Frances Haugen. In the private sector, Meta CEO Mark Zuckerberg has come out in favor of a national data privacy standard similar to the EU’s General Data Protection Regulation (GDPR).

Politico and Morning Consult released the poll results days after Senator Ron Wyden (D-OR) accepted a 24,000-signature petition calling for Congress to pass a federal data protection law. Senator Wyden, who recently introduced his own data privacy proposal called the “Mind Your Own Business Act,” said it was “past time” for Congress to act.

He may be right: U.S./EU data flows have been on borrowed time since 2020. The GDPR prohibits data flows from the EU to countries with inadequate data protection laws, including the United States. The U.S. Privacy Shield regulations allowed the United States to circumvent the rule, but an EU court invalidated the agreement in 2020, and data flows between the US and the EU have been in legal limbo ever since. Eventually, Congress and the EU will need to address the situation and a federal data protection law would be a long-term solution.

This post was authored by C. Blair Robinson, legal intern at Robinson+Cole. Blair is not yet admitted to practice law. Click here to read more about the Data Privacy and Cybersecurity practice at Robinson & Cole LLP.

For more data privacy and cybersecurity news, click here to visit the National Law Review.

Copyright © 2022 Robinson & Cole LLP. All rights reserved.

Social Media, Content Management & Networking with Stefanie Marrone [PODCAST]

The pandemic forced the legal industry to rely on social media. So, where do you start? Rachel and Jessica discuss the best practices with Stefanie Marrone, Founder and CEO of Stefanie Marrone Consulting/The Social Media Butterfly. Be sure to also check out her “Women Who Wow” series.

Read on below for a transcript of our conversation, transcribed by AI:

Rachel

In this episode, we’re excited to talk to Stefanie Marrone, founder and CEO of Stephanie Marrone Consulting and the Social Media Butterfly. Stefanie, would you like to introduce yourself to our listeners?

Stefanie

Yeah, sure. Thanks, guys for having me on. I’m Stephanie Marrone. I have worked with law firms and at law firms for over 20 years . And then about two years ago, I went and started my own business where I’m a consultant to law firms and other companies in the legal industry. And I help them with everything under the sun marketing related and then also with a focus on social media. And I live in New York with my two French bulldog puppies, who will definitely make an appearance today, as I warned you guys before we started recording.

Rachel

Great, we’re excited to get more of your insights here on social media and content creation. So one of the main topics that we want to focus on today, and it’s been sort of a through line in our whole first season here is sort of trends in the legal industry and adjusting to COVID-19. So I was wondering if you could start off by talking a little bit about the trends you’re currently seeing in the legal market today.

Stefanie

What they’re talking about the entire world right now is  the great resignation. There are lots of people leaving their jobs and going to work other places where there is more flexibility, where there’s more work life balance, and that has created a huge problem for law firms of every single size. So I guess it’s a lot of different things, right, the industry was forced to innovate as a result of COVID. They were innovating when it came to how they did business with their clients, and technology became front and center. The work was sort of stagnant for a little bit, and people are nervous to hire, but now they’re back in full swing. And they’re having a lot of trouble. I’m actually working with a number of law firms on recruiting marketing strategies, for the first time in a very long time. Again, because it’s a candidates market, there’s so much content out there. But then they saw it as an opportunity later on. Any lawyer who said I’m just going to take my clients to golf or go out to dinner, or you’re still going to have trouble doing that, because a lot of people are not ready. It’s basically we’re in a new frontier we are talking about the last two years have been like pivoting every single thing you thought you knew and that you were doing, you had to like make a sharp, right, and then a sharp left right afterward, and you went off the grid because the GPS didn’t even have those roads on the map. Right. So it’s been a crazy time over the last 18 months and firms that don’t get it are behind the times. Any firm is requiring you to go back to the office every day is going to have a really tough time getting their people to be excited about working.

Rachel

Right. And yeah, I think one of the interesting things that we’ve heard so far in doing these interviews is the COVID-19 pandemic was like a catalyst to get law firms to change and do a lot of the things that people probably wanted for a really long time, specifically remote work, probably a better work life balance, things like that. You mentioned briefly like working with law firms to come up with sort of recruiting marketing. What does that look like? Like how are firms trying to differentiate themselves and really stand out compared to others right now.

Stefanie

My very first job in legal marketing was working at always Rifkind, Wharton and Garrison and my job was to start their alumni relations program and to help them with recruiting marketing, one of the programs we did was to interview lawyers and find out why we’re getting a candidate in the door, but we’re not closing the deal, or they’re choosing another firm. And what we found was it was a lot of things, it was behavioral issues in terms of interviewing, it was making the candidates feel important. It was the way they were selling the firm, so to speak, you know, communicating what it’s like to work here, full circle. 20 years later. Now I’m getting asked by law firms to help them do exactly what I did 20 years ago, which was to help them tell the story of their firm why of recruits to join the firm, how to promote their wins without sounding too boastful, which is something I tell people all the time you know, you don’t want to put all of your awards everywhere. Candidates don’t care about that. They don’t care about the work. They care about the mentoring, they care about the work life balance, and not everybody wants to make partner anymore. The other one is millennials, I learned so much from millennials. Because I, I grew up in a different generation and their needs and wants are different. So one of the things I’m doing is looking at the materials on the website crafting language that speaks to recruits directly instead of legalese. One of the things I’m working on is like a Glassdoor strategy for one firm, where, you know, we’re saying that listen, employees now have a voice, you can’t just treat everyone poorly and expect that no one’s gonna find out about it, we have checks and balances now, and people are more empowered than they’ve ever been before. So making sure you know, your Glassdoor is okay. And that, you know, it’s not just Glassdoor, there’s obviously Indeed there’s Chambers and there’s other places, but making sure that you’re putting your best foot forward everywhere, and that you’re thinking strategically about how to market yourself to these different audiences. And so I hope that helps, but it’s not enough to have that great name on the door anymore. If people know you to not be a great place to work or not have a great culture, you’re going to have to work harder to get those people to either want to come work for you or stay. Because a lot of firms are losing a lot of their lawyers right now, in this great resignation time and they’re going to where the grass is greener. The firms have to actually spend time retaining their talent. And that’s another thing that I work on in terms of helping them come up with strategies for development for associates and development for other people who may be in danger of leaving. It’s a whole new world, guys.

Rachel

Right. And I think that’s really interesting. You bring up sites like Glassdoor, and Indeed because, like, if you are in the job market, you’re looking to apply a place that already has terrible reviews, that’s people getting turned away before they even apply.

Stefanie

Gone are the days when all that was out there was what the what the firm was saying about themselves or the organization. But now, you have to actually stand by what you say you are, you have to be that kind of place. People only write reviews when they’re really, really happy or really, really, really angry. I work on our alumni relations programs, which is like that full lifecycle of an associate from the time, you know, from recruiting to the time they’re there to then they leave. And so many law firms don’t have a very strong alumni relations program, or they don’t think about it, even people who they’ve  let go or ask to find another job, it doesn’t always work out, it’s okay. But don’t exclude them from the Alumni Program, include them, you want them to be part of the community, you never know who’s going to be a potential recruit of client return to you or bad mouth you out there. So you know, we want to leave people with a feeling of respect even when it doesn’t work out.

Rachel

Right. And that sort of plays into what I want to ask next is sort of like that overarching idea of a firm’s marketing efforts, like their branding, things like that, and how that’s been sort of impacted by COVID 19. So how can attorneys and firms really keep up with their marketing during this time? Like, how can they launch like these, you know, efforts to build their alumni relations and things like that?

Stefanie

Yeah, so one of the things I was seeing in the beginning when COVID had just hit was every firm was doing the exact same thing. They launched a Coronavirus Resource Center, I think I actually counted, it was like 30, something law firms had the exact same name for their resource section. And most of them were using the same stock images. It was that, you know, red and black photo of the COVID cell structure. And they would put that on their website, and then all their materials. And all that did was scare the crap out of everybody. Right? So and you see that same image online as well. So I was just say, I was saying to firms, like, differentiate yourself, be different. Be pivot, be understanding, be empathetic to your clients, and your recruits. And anybody who’s out there, let’s not rely on email. I don’t know about you guys. But I never used Zoom before COVID and I grew up in a law firm environment. And tech was not necessarily always like yet the front and center. So it required us to all adapt and innovate. And there were a lot of people who fought it tooth and nail, but still did it. So I guess my  thought was that COVID change everything. It forced us to be more human. I think we shed a lot of the formalities. I think we needed to innovate, we were forced to do it. I think the firms that are still putting out content without thinking that habits have changed. We’re on our mobile devices more, and law firms have to pivot to that. If you’re not using LinkedIn, you’re way behind the times and you need to use it now. So social is such a big part of your strategy as a lawyer and then also as a firm. One thing that happened a lot During COVID, where people were doing webinars, and they realized that they didn’t necessarily have to give CLE credit or be accredited to do it, the people just wanted to get together and learn about different issues. So I see firms doing that, and I’m so happy they’re doing it, but I don’t see them maximizing their webinars. So they’ll do a webinar one, they won’t take the recording from the webinar, and then have that transcribed and then it becomes a client alert, or, you know, an article that they can place in a third party publication. They don’t use it for social media posts. It’s what I call one and done and they it just goes into like, disappears into thin air. So I guess I still see law firms need help in terms of maximizing their content assets and using them more efficiently and more effectively.

And I think, you know, it’s sort of like work smarter, not harder. Why not repurpose it, you know, make your content work harder and smarter for you is something I literally say once a day.

Jess

Yeah, so you sort of touched upon just how much COVID has changed everything. And you spoke a little bit about webinars, and that was a way for people to sort of stay connected. Are there any other ways that attorneys and law firms in general can build their brands of business as well?  Social distancing is still on people’s minds.

Stefanie

LinkedIn is so important. I think for the majority of lawyers and law firms, it’s going to be LinkedIn where 750 plus million people gather for Business Networking and Information. So if you’re not on LinkedIn, you should get on LinkedIn, you should build a strong profile. The profile should have keywords that describe what you do, how you do, and for whom you do it. So I say there are three building blocks of LinkedIn. One is your profile. So get that completely done and optimize the bio, don’t put like Mr. Smith is, blah, blah, blah, and don’t brag about all your awards. Number two are your connections, a lot of people just sit and wait for people to come to them and connect with them. And it’s a two way street. So you should be actively thinking about who you know, from different walks of life from your path, the more people in your network, the stronger your network will be for when you want to do number three, which is post content. And that’s where I find most lawyers fall short, they don’t know what to do or how to do it. And it makes a huge difference. There’s only 1% of people globally using LinkedIn who actively create content. So there’s a huge opportunity. And lawyers aren’t, in my opinion taking advantage of it, or when they do they sound just like everybody else. So I want to encourage them to do more of that. And if they don’t know what to share, they could go to their company page and share from there, there are a lot of lawyers in the world to anything you can do to remain top of mind with touch points that are useful, that are authentic, and that are, you know, meaningful is important. So that’s why content helps. So I tell people all the time, you know, they’ll ask me, you know, how do I get better ranked in Google? And how do I build my brand? Start writing. You guys know this because of what you guys do. But most people don’t follow your blog, you have to push out the content to people, most people don’t follow your client alerts. This is why we have social media, email marketing, content, syndicators, like what you guys do, and a whole host of other tools that most lawyers don’t realize, like what’s going on behind the scenes. So you can write a great piece of content. But if you don’t promote it effectively and efficiently, it doesn’t matter, no one will see it. You know, if you’re thinking about going back to quote unquote, normal, you’re thinking about it all wrong. Firms, like get that and use content and use webinars. And then, of course, meet with your clients in person. There’s no substitution for that. But this world is not going back to the way it was we will be using social we will be using content marketing more. And I hope that lawyers realize that and firms realize it and then firms do more to promote those things and encourage their people to do those things.

Jess

So you’ve got all this experience in the legal industry, so many years trying to get people all the tools they need with social media content. Can you tell me about Women Who Wow, and why you started that?

Stefanie

So Women Who Wow is a group that I started, it’s actually just supposed to be for women’s history month in March 2020. And I started it before the pandemic and then the pandemic happened, I kept getting recommendations for other women and the series took on a life of its own and so, Women Who Wow became an ongoing series featuring women mostly in the legal industry, giving their ideas and their thoughts and advice on their careers and how they’ve gotten to where they are advice that they would give their younger selves. You know, I really felt like there was a void in the industry for something like this. I thought we needed something where women could spotlighted and celebrated without expecting anything in return. I have over 100 people so far profiled, and it keeps going. And then that sort of started, you know, from the series, then we created events, and they’re all free. And they are various events, learning from women. So it’s various different advice from career advice, to even just kind of finding more balance in your life. And everyone and anyone is welcome. And so it’s been great to build community at a time when I felt so isolated. I think no matter where you are in your career, there’s something for you. It’s just a great way to network. I love this series. And it’s meant a lot to me to find community and to support other women.

Jess

And I think that’s so great, because the legal industry on its head seems to be more maybe male dominated as an industry. So bringing women together for different professional topics, I think could be really beneficial. Is that similar to why you started it? Like kind of your thinking behind it?

Stefanie

Yeah, absolutely. So when you work at a law firm, there’s a lot of class differentials, right. There’s staff, people like me, the marketing person, and then there’s the attorneys. And very often there are benefits given to the attorneys that aren’t necessarily always given to the staff, and there still is a hierarchy at law firms. I also know that there’s a lot of disparity between women in law making partner than men, it is harder for women to make law of make partner from the day they step into the door of a law firm, they are automatically at a disadvantage. And research backs me up. I spoke on a panel on this recently. And essentially, it’s for a number of reasons. They’re not part of the old boys club, there are more men, and it is harder for women to adjust it to balance everything because the sometimes very often the onus of childcare and all that stuff, falls on women. And so they wind up leaving, they don’t make partner they go and they go in house to go to smaller firms, or they leave the industry entirely completely sort of like discouraged by what happened. And so, yes, and my idea was that women can learn so much from each other. So in terms of like talking about, you know, how you find balance, or how you’ve made it work, or to not be so hard on yourself, or what are your success tips. That is what I wanted people to be able to share with each other.

Jess

And I think that was perfect timing on your part, building a community like that, when that pandemic started, we were already feeling very isolated. And then, you know, I’m sure there are, you know, just like women and other groups of people probably always have that sense of slight isolation in like an industry that they work in. So I like that that’s, you know, why brought them together and showcased a lot of people who have knowledge to share, what would you say to people who maybe don’t have that support, or would like that same support?

Stefanie

So I would say build a community, right? So I was missing it, I needed it, I created it. And I wanted to learn from these women. Join the Women Who Wow, it’s open to everybody. It’s free. Like I said, and I would say, you know, if you’re at a firm, surround yourself with people, either in person or online, who are supporters and your cheerleaders and find a mentor, and sometimes it’s not organic, sometimes you need to go actively find one. Sometimes it’s not just one mentor. Sometimes it’s multiple people who provide advice to you in different areas, but they’re people love to give advice. They love to be asked of like, what would you do in this situation? Or tell me about your career? I think a lot of people are afraid to ask for things, ask for advice, ask for help. Don’t be afraid to admit that maybe there are some times where you get in your own way or you need help. And I think I would just say we are all works in progress, and we need to be just a little kinder to ourselves, too.

Rachel

That’s a really great sort of segue into our next topic, which is social media and content strategy. We spoke a little bit about LinkedIn. And we definitely think you know, lawyers should be on that platform. How can lawyers really use LinkedIn to their benefit?

Stefanie

I went over the three fundamentals before in terms of profile connections and then utilization of the platform, which is where most people fall flat. The other thing I see people do is promote themselves on social. I’m seeing all these Super Lawyers rankings being posted. And they literally start the same way. I’m honored to be ranked, or I’m humbled to be ranked, or even worse, I’m honored and humbled to be ranked. It doesn’t make you sound honored or humbled when you write it like that. And so I tell people think about it differently. Tell a story. Why did you become a lawyer? Why did you join your firm? Who helped you on these matters? How did you get to where you are, flip it around, thank your clients, thank the team that was in the office making those copies that got that deal done. It’s all about being humble. People like to celebrate your successes, but they don’t want you to sound like you’re patting yourself too hard on the back. So it’s just telling a story. And I tell people show versus tell with everything. One of my other big pet peeves is if I write an article, or I have a client alert, the lawyers will often publish it or share it without any introductory text. And that is like the worst thing you can do on social because you’re basically letting other people try to figure it out. And it doesn’t rank well with your SEO which LinkedIn has SEO too, by the way. So I tell people write a synopsis. In the beginning, tell people why you wrote this, why it’s interesting. And, you know, I’m sure you guys understand this. But so many lawyers don’t necessarily get to the point right off the bat or in the first couple lines. And that is key on LinkedIn. Because what LinkedIn does in the newsfeed is only show you the first two or three lines of a post. So if you don’t capture anyone’s attention in that time period, they’re going to keep moving along the scroll. And so the whole goal of social is to stop the scroll. And if you don’t have good content, and you don’t have good imagery, they’ll keep scrolling. And I guess the other thing I would say is most lawyers don’t think about LinkedIn, they think I don’t have time for it, I don’t need it. I’m good at what I do I have business. Well, here’s the thing, your business could dry up tomorrow, your competitors are on LinkedIn, I tell people all the time, you know, do it because you see other people do it because you want to be part of it, and it is effective for them. The other thing is that you can use it for business development. So I call this low hanging fruit. But it’s the sections on LinkedIn, where was the notification section, it tells me about people’s birthdays, which sounds trivial, but actually, it’s a touch point to get back in touch with someone and can open up a dialog. I’ve seen this time and time again. So birthdays, work anniversaries and new jobs. People don’t usually send emails anymore, when they get a new job, it’s up to you to do the due diligence to find out where they’ve gone. And that’s a great reason to guys, today, I got three notifications just today on people getting new jobs. So I would send a congratulatory note. And LinkedIn makes it so easy, you just have to hit a button, right. So these are touch points that enable you to get back in the realm of thinking with certain people. And I think it’s I’ve seen it lead to new business. And I’ve seen people bring in business, I love my personal business comes from my presence on LinkedIn, helping others without the expectation of anything in return, posting content, and learning the tools, the algorithm of LinkedIn, how to use hashtags effectively, when to post and all of those things. So if a lawyer doesn’t think it’s worth their while, I can show them five examples of how it could be worth their while. And it’s certainly not the only thing they should be doing. Just like they shouldn’t be relying on spreading articles or taking their clients for a golf game. It’s part of the overall multi disciplinary marketing strategy today have a lawyer and a law firm that is necessary to build your brand and your business.

Rachel

Right. And that sort of ties into another thing I was hoping to sort of get your thoughts on. We’ve spoken about LinkedIn, but Twitter and Facebook are also pretty big social media platforms, how can lawyers and firms use those platforms more effectively?

Stefanie

Lawyers have a lot of trouble with Twitter, and Facebook and Instagram. And it’s not easy to build your brand on any of these platforms. A lot of us post our personal stuff on Facebook, and if there’s a way that you can tie personal and professional together, do it. If you worked on a real estate deal, take a picture of the building and say, you know, I’m so proud to live in this city or to have worked on this deal means a lot I’ve walked by this building a million times Never did I think I would actually work on this. So I always tell people be alert that everybody and anybody can be a potential client or source of new business for employees. So on Facebook, I would say just don’t sound boastful. It’s not the place to post Super Lawyers. I don’t think you should ever post that stuff personally, but but other people would disagree with me. And then on Twitter, so Twitter moves a mile a minute. To be successful on Twitter, you need to post multiple times a day. And if you’re not going to do that, then don’t bother. But you could use Twitter as a news aggregator which I see a lot of people will do so follow the accounts of your competitor law firms. Follow  other lawyers and use ideas that you get from what they’re writing.

To inspire you follow industry publications as well, trade show conferences that are happening, obviously, the major news outlets because news is broken on Twitter, I get a lot of my news from just scrolling on Twitter, the lawyers can use it that way. Lawyers can also use Twitter to build relationships with reporters, and congratulate them on things they’ve written and retweet them and stay in touch with them. I recommend you have two Instagram profiles, one personal that is private, and one Instagram that is for work. You will not be successful on Instagram if you don’t understand how to use the different types of content, and hashtags. That’s it. So there’s reels and IGTV and regular posts and stories. If you don’t know what this means, you should not post it. I would tell law firms and lawyers to claim your name so at least you have the domain but don’t post in places also where your clients aren’t. Go where your clients are. You don’t have to be on TikTok, please actually don’t go on TikTok, if you’re a lawyer, in my opinion.  You don’t need to be on every platform, go where your clients are focused first. And you have to alter the message for the medium. You can’t post the same image on Instagram, you have to make it a square and you have to change the text and you have to use the app side differently. And if this doesn’t make sense to you, that means you are not ready to do that. It’s a jungle.  I would tell you to just go where your clients are. And don’t feel pressured to be on every platform.

Rachel

Yeah, one of the other sort of overarching themes of our podcast season is like just like there’s no one size fits all solution, you have to be adaptable. And remember, the word of the entire 18 months is pivot, right? You have to pivot, sort of like rounding out a discussion on social media, what strategies have really been your tried and true?

Stefanie

Yeah, so here’s the thing, I never thought I would start my own business and you never know where your life is going to go. And I always worked in house at law firms, and I was always posting on social. Build your brand long before you ever think you need it. I was able to do consulting with law firms very easily because I had the presence on social. My advice is to start using social to post even if you feel like oh, no one cares what I have to say. Why not you? Yes, they do. Certain people will. You won’t be everyone’s cup of tea. And I’ll say, you know, the more successful you get at it, the more naysayers you have/ I talk about Mean Girls quite a bit in the Women Who Wow program because we come across those at all stages of our lives, we just forget about them.  When people are like that, it’s usually because something in you brings out something in them that makes them feel inadequate or insecure, or they’re jealous about something. So keep going. There’s no easy way to download every single LinkedIn post you’ve ever written, especially since like the dawn of time, you can download your articles, so like the long form ones, and you can download your contacts, but you can’t do it with the posts. And so I keep an Excel spreadsheet of all of my posts, and I reuse that. So don’t reinvent the wheel every time – you can reuse your content.

No one remembers, there’s no way to spam anybody on LinkedIn. And even if they saw it, it’s reinforcement then. So that’s been another key to my success. And then the other one is helping others. It’s propping up others. It’s promoting others. It’s when I see somebody doing something great promoting and mentioning them on social. So for every three posts I do about something of mine, I’m promoting someone else. And that’s Women who Wow, for me, it’s putting the spotlight on other people. That’s how you build really great relationships on social and then people want to do good things for you because you’re helping them. So all of these have been part of my strategy, but it’s sort of evolved over the years and by the way, my posts sometimes tank completely. And I’ll tell you, it gets discouraging, but you just keep going, you show up, you try different things, you keep posting. You look at what worked and what didn’t, you look at the time of day, the analytics, all those things and then just be open to pivoting again.  It’s not about the number of likes you get on a post. If I’ve helped five people, that’s great. I don’t need 1000 likes on a post. it’s nice when things do go viral – the things by the way that have gone viral for me are when I post about a challenge.

Rachel

That was a great conversation. Thanks again for joining us, Stefanie. We really appreciate it.

Stefanie

Thank you guys for having me.

Copyright ©2021 National Law Forum, LLC

For more articles on the legal industry, visit the NLR Law Office Management section.

Legal Implications of Facebook Hearing for Whistleblowers & Employers – Privacy Issues on Many Levels

On Sunday, October 3rd, Facebook whistleblower Frances Haugen publicly revealed her identity on the CBS television show 60 Minutes. Formerly a member of Facebook’s civic misinformation team, she previously reported them to the Securities and Exchange Commission (SEC) for a variety of concerning business practices, including lying to investors and amplifying the January 6th Capitol Hill attack via Facebook’s platform.

Like all instances of whistleblowing, Ms. Haugen’s actions have a considerable array of legal implications — not only for Facebook, but for the technology sectors and for labor practices in general. Especially notable is the fact that Ms. Haugen reportedly signed a confidentiality agreement or sometimes call a non-disclosure agreement (NDA) with Facebook, which may complicate the legal process.

What are the Legal Implications of Breaking a Non-Disclosure Agreement?

After secretly copying thousands of internal documents and memos detailing these practices, Ms. Haugen left Facebook in May, and testified before a Senate subcommittee on October 5th.  By revealing information from the documents she took, Facebook could take legal action against Ms. Haugen if they accuse her of stealing confidential information from them. Ms. Haugen’s actions raise questions of the enforceability of non-disclosure and confidentiality agreements when it comes to filing whistleblower complaints.

“Paradoxically, Big Tech’s attack on whistleblower-insiders is often aimed at the whistleblower’s disclosure of so-called confidential inside information of the company.  Yet, the very concerns expressed by the Facebook whistleblower and others inside Big Tech go to the heart of these same allegations—violations of privacy of the consuming public whose own personal data has been used in a way that puts a target on their backs,” said Renée Brooker, a partner with Tycko & Zavareei LLP, a law firm specializing in representing whistleblowers.

Since Ms. Haugen came forward, Facebook stated they will not be retaliating against her for filing a whistleblower complaint. It is unclear whether protections from legal action extend to other former employees, as is the case with Ms. Haugen.

Other employees like Frances Haugen with information about corporate or governmental misconduct should know that they do not have to quit their jobs to be protected. There are over 100 federal laws that protect whistleblowers – each with its own focus on a particular industry, or a particular whistleblower issue,” said Richard R. Renner of Kalijarvi, Chuzi, Newman & Fitch, PC, a long-time employment lawyer.

According to the Wall Street Journal, Ms. Haugen’s confidentiality agreement permits her to disclose information to regulators, but not to share proprietary information. A tricky balancing act to navigate.

“Big Tech’s attempt to silence whistleblowers are antithetical to the principles that underlie federal laws and federal whistleblower programs that seek to ferret out illegal activity,” Ms. Brooker said. “Those reporting laws include federal and state False Claims Acts, and the SEC Whistleblower Program, which typically feature whistleblower rewards and anti-retaliation provisions.”

Legal Implications for Facebook & Whistleblowers

Large tech organizations like Facebook have an overarching influence on digital information and how it is shared with the public. Whistleblowers like Ms. Haugen expose potential information about how companies accused of harmful practices act against their own consumers, but also risk disclosing proprietary business information which may or may not be harmful to consumers.

Some of the most significant concerns Haugen expressed to Congress were the tip of the iceberg according to those familiar with whistleblowing reports on Big Tech. Aside from the burden of proof required for such releases to Congress, the threats of employer retaliation and legal repercussions may prevent internal concerns from coming to light.

“Facebook should not be singled out as a lone actor. Big Tech needs to be held accountable and insiders can and should be encouraged to come forward and be prepared to back up their allegations with hard evidence sufficient to allow governments to conduct appropriate investigations,’ Ms. Brooker said.

As the concern for cybersecurity and data protection continues to hold public interest, more whistleblower disclosures against Big Tech and other companies could hold them accountable are coming to light.

During Haugen’s testimony during  the October 5, 2021 Congressional hearing revealed a possible expanding definition of media regulation versus consumer censorship. Although these allegations were the latest against a large company such as Facebook, more whistleblowers may continue to come forward with similar accusations, bringing additional implications for privacy, employment law and whistleblower protections.

“The Facebook whistleblower’s revelations have opened the door just a crack on how Big Tech is exploiting American consumers,” Ms. Brooker said.

This article was written by Rachel Popa, Chandler Ford and Jessica Scheck of the National Law Review. To read more articles about privacy, please visit our cybersecurity section.

Leveraging Technology to Meet Your Marketing Needs During COVID-19

Technology plays a vital role in our everyday lives and has vastly improved the way we communicate to friends, family, and colleagues alike. During these unprecedented times, technology has played an even greater role, including using it for law firm marketing efforts. While a pandemic has certainly ceased much of our normal lives, below are four ways you can use technology to keep your marketing and public relations efforts alive.

Live Stream on Social

Many social media platforms, such as Twitter, Facebook, and Instagram feature a live stream option, allowing users to broadcast directly from their home in real time. A great way to use this tool is to host Q&A sessions to discuss trending topics related to your practice area. Consider promoting the Q&A 2 to 3 weeks prior and allow people the option to submit questions ahead of time via direct message or email.

Webinars

Since most states have implemented stay-at-home orders, nearly every in-person event has been cancelled for the foreseeable future. However, that doesn’t mean presentations, seminars, or lectures aren’t possible to conduct. One of the main benefits of hosting a webinar is the ability to present from wherever and have your attendees tune-in from anywhere. Use this opportunity to adapt your presentation to be more visually appealing to a broader audience and incorporate a few real-life examples to keep your audience engaged. Be sure to also promote your webinar 2 to 3 weeks prior to maximize attendance. Additionally, for lawyer-attended webinars, consider getting your presentation CLE-certified as an added incentive for lawyers to fulfill their required CLE hours.

Newsletters & Email Blasts

If you have an up-to-date contact list, distribute a newsletter or email blast detailing how your company is helping those affected by COVID-19. This is a great way to communicate with your network and offer valuable information. Additionally, by using distribution platforms such as MailChimp and Constant Contact, you can view your newsletter/email blast’s performance analytics, including how many people viewed your content and which links were clicked the most. If you don’t have an up-to-date contact list, use this time to create or update one.

Google Analytics

 This free feature offered by the search engine giant allows users to collect website traffic information and identify the number of unique monthly visitors, among other data. Since Google Analytics tracks data in real time, you’re consistently informed of how your website is performing against your competitors. You can also generate weekly reports to pinpoint relevant keywords and search terms embedded in your URLs that drive people to your site. With this information, you can better understand the behavior of your customers, and update text or content on the backend of your website to improve your ability to reach your target audience.


© 2020 Berbay Marketing & Public Relations

For more marketing for law firms, see the Law Office Management section on the National Law Review.

National Security Meets Teenage Dance Battles: Trump Issues Executive Orders Impacting TikTok and WeChat Business in the U.S.

On August 6, 2020, Trump issued two separate executive orders that will severely restrict TikTok and WeChat’s business in the United States.  For weeks, the media has reported on Trump’s desire to “ban” TikTok with speculation about the legal authority to do so.  We break down the impact of the Orders below.

The White House has been threatening for weeks to ban both apps in the interest of protecting “the national security, foreign policy, and economy of the United States.”  According to the Orders issued Thursday, the data collection practices of both entities purportedly “threaten[] to allow the Chinese Communist Party access to Americans’ personal and proprietary information — potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.”

This is not a new threat.  A variety of government actions in recent years have been aimed at mitigating the national security risks associated with foreign adversaries stealing sensitive data of U.S. persons.  For example, in 2018, the Foreign Investment Risk Review Modernization Act (FIRRMA) was implemented to expand the authority of the Committee on Foreign Investment in the United States (CFIUS) to review and address national security concerns arising from foreign investment in U.S. companies, particularly where foreign parties can access the personal data of U.S. citizens.  And CFIUS has not been hesitant about exercising this authority.  Last year, CFIUS required the divestment of a Chinese investor’s stake in Grindr, the popular gay dating app, because of concerns that the Chinese investor would have access to U.S. citizens’ sensitive information which could be used for blackmail or other nefarious purposes.  That action was in the face of Grindr’s impending IPO.

In May 2019, Trump took one step further, issuing Executive Order 13873 to address a “national emergency with respect to the information and communications technology and services supply chain.”  That Order stated that foreign adversaries were taking advantage of vulnerabilities in American IT and communications services supply chain and described broad measures to address that threat.  According to these new Orders, further action is necessary to address these threats.  EO 13873 and the TikTok and WeChat Orders were all issued under the International Emergency Economic Powers Act  (IEEPA), which provides the President broad authority to regulate transactions which threaten national security during a national emergency.

Order Highlights

Both Executive Orders provide the Secretary of Commerce broad authority to prohibit transactions involving the parent companies of TikTok and WeChat, with limitations on which transactions yet to be defined.

  • The TikTok EO prohibits “any transaction by any person, or with respect to any property, subject to the jurisdiction of the United States,” with ByteDance Ltd., TikTok’s parent company, “or its subsidiaries, in which any such company has any interest, as identified by the Secretary of Commerce”
  • The WeChat EO prohibits “any transaction that is related to WeChat by any person, or with respect to any property, subject to the jurisdiction of the United States, with Tencent Holdings Ltd., WeChat’s parent company “or any subsidiary of that entity, as identified by the Secretary of Commerce.”
  • Both Executive Orders will take effect 45 days after issuance of the order (September 20, 2020), by which time the Secretary of Commerce will have identified the transactions subject to the Orders.

Implications

Until the Secretary of Commerce identifies the scope of transactions prohibited by the Executive Orders, the ultimate ramifications of these Orders remain unclear.  However, given what we do know, we have some initial thoughts on how these new prohibitions may play out.  The following are some preliminary answers to the burning questions at the forefront of every American teenager’s (and business person’s) mind.

Q:  Do these Orders ban the use of TikTok or WeChat in the United States?

A:  While the Orders do not necessarily ban the use of TikTok or WeChat itself, the app (or any future software updates) may no longer be available for download in the Google or Apple app stores in the U.S., and U.S. companies may not be able to purchase advertising on the social media platform – effectively (if not explicitly) banning the apps from the United States.

Q:  Will all transactions with ByteDance Ltd. and Tencent Holdings Ltd. (TikTok and WeChat’s parent companies, respectively) be prohibited?

A:  Given the broad language in the Orders, it does appear that U.S. app stores, carriers, or internet service providers (ISPs) will likely not be able to continue carrying the services while TikTok and WeChat are owned by these Chinese entities.  However, it is unlikely that the goal is to prohibit all transactions with these companies as a deterrent or punishment tool – which would essentially amount to designating them as Specially Designated Nationals (SDNs) – the  Orders clearly contemplate some limitations to be imposed on the types of transactions subject to the Order by the Secretary of Commerce.  Furthermore, the national security policy rationale for such restrictions will not be present in all transactions (i.e. if the concern is the ability of Chinese entities to access personal data of U.S. citizens in a manner that could be used against the interests of the United States, then presumably transactions in which ByteDance Ltd. and Tencent Holdings Ltd. do not have access to such data should be permissible.).  So while we do not know exactly what the scope of prohibited transactions will be, it would appear that the goal is to restrict these entities’ access to U.S. data and any transactions that would facilitate or allow such access.

Q:  What does “any property, subject to the jurisdiction of the United States” mean?

A:  Normally, the idea behind such language is to limit the prohibited transactions to those with a clear nexus to the United States: any U.S. person or person within the United States, or involving property within the United States.  It is unlikely that transactions conducted wholly outside the United States by non-U.S. entities would be impacted.  From a policy perspective, it would make sense that the prohibitions be limited to transactions that would facilitate these Chinese entities getting access to U.S.-person data through the use of TikTok and WeChat.

Q:  What about the reported sale of TikTok?

A: There is a chance the restrictions outlined in the TikTok EO will become moot.  Reportedly, Microsoft is in talks with ByteDance to acquire TikTok’s business in the United States and a few other jurisdictions.  If the scope of prohibited transactions are tailored to those involving access to U.S. person data and if a U.S. company can assure that U.S. user-data will be protected, then the national security concerns of continued use of the app would be mitigated.  Unless and until such acquisition takes place, U.S. companies investing in TikTok or utilizing it for advertising such be prepared for the restrictions to take effect.  At this time, there do not appear to be any U.S. buyers in the mix for WeChat.

Q:  The WeChat EO prohibits any transaction that is “related to” WeChat…what does that mean?

A:  The WeChat prohibition is more ambiguous and could have significantly wider impact on U.S. business interests. WeChat is widely used in the United States, particularly by people of Chinese descent, to carry out business transactions, including communicating with, and making mobile payments to, various service providers.  The WeChat EO prohibits “any transaction that is related to WeChat  with Tencent Holdings Ltd., or any of its subsidiaries.  Unlike TikTok, WeChat’s services extend beyond social media.  While the language of the ban is vague and the prohibited transactions are yet to be determined, it appears likely that using WeChat for these communications and transactions may no longer be legal. It is also unclear if the WeChat prohibition will extend to other businesses tied to Tencent, WeChat’s parent company, including major gaming companies Epic Games (publisher of the popular “Fortnite”), Riot Games (“League of Legends”), and Activision Blizzard, all in which Tencent has substantial ownership interests.  There has been some reporting that a White House official confirmed Tencent’s gaming interest are excluded from the Order as being unrelated to WeChat, but until the Secretary of Commerce specifies the prohibited transactions, the scope of the Order remains uncertain

Bottom Line

Until the Secretary of Commerce issues its list of transactions prohibited under these Executive Orders, the scope and effect of these Orders is conjectural.  This Administration’s all-in posture towards China would suggest that the prohibitions could be broad and severe.  U.S. companies utilizing WeChat or TikTok for business purposes or conducting business with the apps’ owners, should think carefully about ongoing and future transactions.  Of course, there is an election right around the corner and a new Administration may bring significant change to related foreign, trade and technology policy.  Thoughtful planning for a variety of scenarios will enable companies’ to respond appropriately as the restrictions on TikTok and WeChat are crystallized.


Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.

FTC Reports to Congress on Social Media Bots and Deceptive Advertising

The Federal Trade Commission recently sent a report to Congress on the use of social media bots in online advertising (the “Report”).  The Report summarizes the market for bots, discusses how the use of bots in online advertising might constitute a deceptive practice, and outlines the Commission’s past enforcement work and authority in this area, including cases involving automated programs on social media that mimic the activity of real people.

According to one oft-cited estimate, over 37% of all Internet traffic is not human and is instead the work of bots designed for either good or bad purposes.  Legitimate uses for bots vary: crawler bots collect data for search engine optimization or market analysis; monitoring bots analyze website and system health; aggregator bots gather information and news from different sources; and chatbots simulate human conversation to provide automated customer support.

Social media bots are simply bots that run on social media platforms, where they are common and have a wide variety of uses, just as with bots operating elsewhere.  Often shortened to “social bots,” they are generally described in terms of their ability to emulate and influence humans.

The Department of Homeland Security describes them as programs that “can be used on social media platforms to do various useful and malicious tasks while simulating human behavior.”  These programs use artificial intelligence and big data analytics to imitate legitimate activities.

According to the Report, “good” social media bots – which generally do not pretend to be real people – may provide notice of breaking news, alert people to local emergencies, or encourage civic engagement (such as volunteer opportunities).  Malicious ones, the Report states, may be used for harassment or hate speech, or to distribute malware.  In addition, bot creators may be hijacking legitimate accounts or using real people’s personal information.

The Report states that a recent experiment by the NATO Strategic Communications Centre of Excellence concluded that more than 90% of social media bots are used for commercial purposes, some of which may be benign – like chatbots that facilitate company-to-customer relations – while others are illicit, such as when influencers use them to boost their supposed popularity (which correlates with how much money they can command from advertisers) or when online publishers use them to increase the number of clicks an ad receives (which allows them to earn more commissions from advertisers).

Such misuses generate significant ad revenue.

“Bad” social media bots can also be used to distribute commercial spam containing promotional links and facilitate the spread of fake or deceptive online product reviews.

At present, it is cheap and easy to manipulate social media.  Bots have remained attractive for these reasons and because they are still hard for platforms to detect, are available at different levels of functionality and sophistication, and are financially rewarding to buyers and sellers.

Using social bots to generate likes, comments, or subscribers would generally contradict the terms of service of many social media platforms.  Major social media companies have made commitments to better protect their platforms and networks from manipulation, including the misuse of automated bots.  Those companies have since reported on their actions to remove or disable billions of inauthentic accounts.

The online advertising industry has also taken steps to curb bot and influencer fraud, given the substantial harm it causes to legitimate advertisers.

According to the Report, the computing community is designing sophisticated social bot detection methods.  Nonetheless, malicious use of social media bots remains a serious issue.

In terms of FTC action and authority involving social media bots, the FTC recently announced an enforcement action against a company that sold fake followers, subscribers, views and likes to people trying to artificially inflate their social media presence.

According to the FTC’s complaint, the corporate defendant operated websites on which people bought these fake indicators of influence for their social media accounts.  The corporate defendant allegedly filled over 58,000 orders for fake Twitter followers from buyers who included actors, athletes, motivational speakers, law firm partners and investment professionals.  The company allegedly sold over 4,000 bogus subscribers to operators of YouTube channels and over 32,000 fake views for people who posted individual videos – such as musicians trying to inflate their songs’ popularity.

The corporate defendant also allegedly also sold over 800 orders of fake LinkedIn followers to marketing and public relations firms, financial services and investment companies, and others in the business world.  The FTC’s complaint states that followers, subscribers and other indicators of social media influence “are important metrics that businesses and individuals use in making hiring, investing, purchasing, listening, and viewing decisions.” Put more simply, when considering whether to buy something or use a service, a consumer might look at a person’s or company’s social media.

According to the FTC, a bigger following might impact how the consumer views their legitimacy or the quality of that product or service.  As the complaint also explains, faking these metrics “could induce consumers to make less preferred choices” and “undermine the influencer economy and consumer trust in the information that influencers provide.”

The FTC further states that when a business uses social media bots to mislead the public in this way, it could also harm honest competitors.

The Commission alleged that the corporate defendant violated the FTC Act by providing its customers with the “means and instrumentalities” to commit deceptive acts or practices.  That is, the company’s sale and distribution of fake indicators allowed those customers “to exaggerate and misrepresent their social media influence,” thereby enabling them to deceive potential clients, investors, partners, employees, viewers, and music buyers, among others.  The corporate defendant was therefor charged with violating the FTC Act even though it did not itself make misrepresentations directly to consumers.

The settlement banned the corporate defendant and its owner from selling or assisting others in selling social media influence.  It also prohibits them from misrepresenting or assisting others to misrepresent, the social media influence of any person or entity or in any review or endorsement.  The order imposes a $2.5 million judgment against its owner – the amount he was allegedly paid by the corporate defendant or its parent company.

The aforementioned case is not the first time the FTC has taken action against the commercial misuse of bots or inauthentic online accounts.  Indeed, such actions, while previously involving matters outside the social media context, have been taking place for more than a decade.

For example, the Commission has brought three cases – against Match.com, Ashley Madison, and JDI Dating – involving the use of bots or fake profiles on dating websites.  In all three cases, the FTC alleged in part that the companies or third parties were misrepresenting that communications were from real people when in fact they came from fake profiles.

Further, in 2009, the FTC took action against am alleged rogue Internet service provider that hosted malicious botnets.

All of this enforcement activity demonstrates the ability of the FTC Act to adapt to changing business and consumer behavior as well as to new forms of advertising.

Although technology and business models continue to change, the principles underlying FTC enforcement priorities and cases remain constant.  One such principle lies in the agency’s deception authority.

Under the FTC Act, a claim is deceptive if it is likely to mislead consumers acting reasonably in the circumstances, to their detriment.  A practice is unfair if it causes or is likely to cause substantial consumer injury that consumers cannot reasonably avoid and which is not outweighed by benefits to consumers or competition.

The Commission’s legal authority to counteract the spread of “bad” social media bots is thus powered but also constrained by the FTC Act, pursuant to which the FTC would need to show in any given case that the use of such bots constitute a deceptive or unfair practice in or affecting commerce.

The FTC will continue its monitoring of enforcement opportunities in matters involving advertising on social media as well as the commercial activity of bots on those platforms.

Commissioner Rohit Chopra issued a statement regarding the “viral dissemination of disinformation on social media platforms.” And the “serious harms posed to society.”  “Social media platforms have become a vehicle to sow social divisions within our country through sophisticated disinformation campaigns.  Much of this spread of intentionally false information relies on bots and fake accounts,” Chopra states.

Commissioner Chopra states that “bots and fake accounts contribute to increased engagement by users, and they can also inflate metrics that influence how advertisers spend across various channels.”  “[T]he ad-driven business model on which most platforms rely is based on building detailed dossiers of users.  Platforms may claim that it is difficult to detect bots, but they simultaneously sell advertisers on their ability to precisely target advertising based on extensive data on the lives, behaviors, and tastes of their users … Bots can also benefit platforms by inflating the price of digital advertising.   The price that platforms command for ads is tied closely to user engagement, often measured by the number of impressions.”

Click here to read the Report.


© 2020 Hinch Newman LLP

“OK, Boomer!”: Not Okay In the Office

As recently highlighted by the New York Times, a new phrase emblematic of the real or perceived “War Between the Generations” has gone viral: “OK, Boomer!”  The phrase, popularized on the Internet and, in particular, Twitter by Generation Z and Millennials, has been used to dismiss baby boomers’ thoughts and opinions, sometimes viewed by younger generations as paternalistic or just out of step.

And, the phrase isn’t just living in Twitter feeds and the comments sections of opinion pieces.  There is “OK, Boomer!” merchandise and, just last week, a 25 year-old member of the New Zealand Parliament used the phrase to dismiss a fellow lawmaker’s perceived heckling during a debate about climate change.

While many may find “OK, Boomer!” a harmless way to point out generational differences, the phrase’s popularity could lead to problems once it creeps into the workplace.  Age (over 40) is a protected category under both California law (i.e., the Fair Employment and Housing Act) and federal law (i.e., the Age Discrimination in Employment Act).  Whether the speaker is well-intentioned or not, dismissive attitudes about older workers could form the basis of claims for discrimination and/or harassment.  And, as one radio host recently opined, the phrase “OK, Boomer!” may be regarded by some as an outright slur.

Generation Z and Millennial employees understand that using derogatory or dismissive comments related to gender, race, religion, national origin, disability and sexual orientation are inappropriate.  Yet, for some reason, some may not have made the leap with regard to insidious/disparaging comments about a co-worker’s age.  Given the prevalence of age discrimination lawsuits, employers should take heed and consider reminding their workforce about the impropriety of this and other age-related phrases, and train their employees to leave the generation wars at the door.


© 2019 Proskauer Rose LLP.

For more on employment discrimination see the National Law Review Labor & Employment law page.

China’s TikTok Facing Privacy & Security Scrutiny from U.S. Regulators, Lawmakers

Perhaps it is a welcome reprieve for Facebook, Google and YouTube. A competing video-sharing social media company based in China has drawn the attention of U.S. privacy officials and lawmakers, with a confidential investigation under way and public hearings taking place on Capitol Hill.

Reuters broke the story that the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS) is conducting a national security review of the owners of TikTok, a social media video-sharing platform that claims a young but formidable U.S. audience of 26.5 million users. CFIUS is engaged in the context of TikTok owner ByteDance Technology Co.’s $1 billion acquisition of U.S. social media app Musical.ly two years ago, a deal ByteDance did not present to the agency for review.

Meanwhile, U.S. legislators are concerned about censorship of political content, such as coverage of protests in Hong Kong, and the location and security of personal data the company stores on U.S. citizens.

Sen. Josh Hawley (R-Mo.), Chairman of the Judiciary Committee’s Subcommittee on Crime and Terrorism, invited TikTok and others to testify in Washington this week for hearings titled “How Corporations and Big Tech Leave Our Data Exposed to Criminals, China, and Other Bad Actors.”

While TikTok did not send anyone to testify, the company’s recently appointed General Manager for North America and Australia Vanessa Pappas, formerly with YouTube, sent a letter indicating that it did not store data on U.S. citizens in China. She explained in an open letter on the TikTok website, which reads similarly to that reportedly sent to the subcommittee, that the company is very much aware of its privacy obligations and U.S. regulations and is taking a number of measures to address its obligations.

For nearly eight years Pappas served as Global Head of Creative Insights and before that Audience Development for YouTube. In late 2018 she was strategic advisor to ByteDance, and in January 2019 became TikTok’s U.S. General Manager. In July her territory expanded to North America and Australia. Selecting someone who played such a leadership position for YouTube, widely used and familiar to Americans, to lead U.S. operations may serve calm the nerves of U.S. regulators. But given U.S. tensions with China over trade, security and intellectual property, TikTok and Pappas have a way to go.

Some commentators think Facebook must enjoy watching TikTok getting its turn in the spotlight, especially since TikTok is a growing competitor to Facebook in the younger market. If just briefly, it may divert attention away from the attention being paid globally to the social media giant’s privacy and data collection practices, and the many fines.

It’s clear that TikTok has Facebook’s attention. TikTok, which allows users to create and share short videos with special effects, did a great deal of advertising on Facebook. The ads were clearly targeting the teen demographic and were apparently successful. CEO Mark Zuckerberg recently said in a speech that mentions of the Hong Kong protests were censored in TikTok feeds in China and to the United States, something TikTok denied. In a case of unfortunate timing, Zuckerberg this week posted that 100 or so software developers may have improperly accessed Facebook user data.

Since TikTok is largely a short-video sharing application, it competes at some level with YouTube in the youth market. In the third quarter of 2019, 81 percent of U.S. internet users aged 15 to 25 accessed YouTube, according to figures collected by Statista. YouTube boasts more than 126 million monthly active users in the U.S., 100 million more than TikTok.

Potential counterintelligence ‘we cannot ignore’

Last month, U.S. Senate Minority Leader Chuck Schumer (D-NY) and Senator Tom Cotton (R-AR) asked Acting Director of National Intelligence to conduct a national security probe of TikTok and other Chinese companies. Expressing concern about the collection of user data, whether the Chinese government censors content feeds to the U.S., as Zuckerberg suggested, and whether foreign influencers were using TikTok to advance their objectives.

“With over 110 million downloads in the U.S. alone,” the Schumer and Cotton letter read, “TikTok is a potential counterintelligence threat we cannot ignore. Given these concerns, we ask that the Intelligence Community conduct an assessment of the national security risks posed by TikTok and other China-based content platforms operating in the U.S. and brief Congress on these findings.” They must be happy with Sen. Hawley’s hearings.

In her statement, TikTok GM Pappas offered the following assurances:

  • U.S. user data is stored in the United States with backup in Singapore — not China.
  • TikTok’s U.S. team does what’s best for the U.S. market, with “the independence to do so.”
  • The company is committed to operating with greater transparency.
  • California-based employees lead TikTok’s moderation efforts for the U.S.
  • TikTok uses machine learning tools and human content reviews.
  • Moderators review content for adherence to U.S. laws.
  • TikTok has a dedicated team focused on cybersecurity and privacy policies.
  • The company conducts internal and external reviews of its security practices.
  • TikTok is forming a committee of users to serve them responsibly.
  • The company has banned political advertising.

Both TikToc and YouTube have been stung by failing to follow the rules when it comes to the youth and children’s market. In February, TikTok agreed to pay $5.7 million to settle the FTC’s case which allege that, through the Musical.ly app, TikTok company illegally collected personal information from children. At the time it was the largest civil penalty ever obtained by the FTC in a case brought under the Children’s Online Privacy Protection Act (COPPA). The law requires websites and online services directed at children obtain parental consent before collecting personal information from kids under 13. That record was smashed in September, though, when Google and its YouTube subsidiary agreed to pay $170 million to settle allegations brought by the FTC and the New York Attorney General that YouTube was also collecting personal information from children without parental consent. The settlement required Google and YouTube to pay $136 million to the FTC and $34 million to New York.

Quality degrades when near-monopolies exist

What I am watching for here is whether (and how) TikTok and other social media platforms respond to these scandals by competing on privacy.

For example, in its early years Facebook lured users with the promise of privacy. It was eventually successful in defeating competitors that offered little in the way of privacy, such as MySpace, which fell from a high of 75.9 million users to 8 million today. But as Facebook developed a dominant position in social media through acquisition of competitors like Instagram or by amassing data, the quality of its privacy protections degraded. This is to be expected where near-monopolies exist and anticompetitive mergers are allowed to close.

Now perhaps the pendulum is swinging back. As privacy regulation and publicity around privacy transgressions increase, competitive forces may come back into play, forcing social media platforms to compete on the quality of their consumer privacy protections once again. That would be a great development for consumers.

 


© MoginRubin LLP

ARTICLE BY Jennifer M. Oliver of MoginRubin.
Edited by Tom Hagy for MoginRubin LLP.
For more on social media app privacy concerns, see the National Law Review Communications, Media & Internet law page.

Social Media Scrutiny on Visa Applications

On May 31, 2019, the Department of State added new questions to Forms DS-160/DS-156 Nonimmigrant Visa Application and Form DS-260, Immigrant Visa Application. These additional questions require the foreign national to disclose social media platforms they have used within the past five years, as well as provide their username(s) for each platform. Passwords for these accounts do not have to be disclosed and should not be provided. Additional questions request the visa applicant’s current e-mail and phone number, in addition to contact information for the previous five years. If applicants are unable to recall precise details, they may insert “unknown,” but should be prepared for the possibility of additional screening during the visa process. Please note, this a question that must be answered as fully as possible by the Foreign National. Not providing the requested details could result in denial or quite possibly the denial of subsequent immigration applications.

Forms DS-160/DS-156 and DS-260 are the online applications used by individuals seeking a nonimmigrant or immigrant visa from the U.S. Department of State. Completion of the forms is the first step in the process with the Department of State, and must be submitted before scheduling and attending the visa interview. The Department of State has stated that the changes are intended “to improve … screening processes to protect U.S. citizens, while supporting legitimate travel to the United States,” as well as “vetting … applicants and confirming their identity.”

Further, on September 4, 2019, the Department of Homeland Security proposed a federal rule to add similar social media questions to several forms, including the applications for naturalization, advance parole, adjustment of status, asylum, and to remove conditions on permanent residents, along with many others. Additionally, applicants for the Electronic System for Travel Authorization (ESTA) and the Electronic Visa Update System (EVUS), used for frequent international travel, are included in the proposed rule.

These changes stem from the President’s March 6, 2017 Executive Order, requesting heightened screening and vetting of visa applicants. The March 2017 Executive Order requested that the Secretary of State, the Attorney General, the Secretary of Homeland Security and the Director of National Intelligence create “a uniform baseline for screening and vetting standards and procedures.” The addition of the social media and contact information requirements to these application forms is part of the Department of State’s response to that Order. This represents a step up for the Department of State, which previously only asked that applicants voluntarily provide their social media information.

An individual’s social media content can be easily taken out of context, even more so when the postings are from long ago and/or are in a foreign language. Social media also provides an individual’s history of contacts, associations and preferences. While much (justifiable) concern has been expressed about the scrutiny of foreign nationals’ associations and political speech, many social media platforms and the posts thereon will provide information on a foreign national’s employment history and residency. Employment history and residency information can be particularly relevant in employment-based nonimmigrant and immigrant visa applications, such as the H-1B, L-1A and I-140 petitions. These details can also be very important in that the Department of State can use them to compare the information on social media to the information contained in the visa applications. Any discrepancies in that information can lead to difficulty in successfully obtaining both nonimmigrant and immigrant visas. Possible discrepancies can lead to delays in processing, requests for additional information, increased scrutiny in other areas of the application and even denial.

Additionally, many individuals do not keep their social media accounts up to date. As the requested information covers the last five years of the applicant’s social media history (including those accounts that may be closed at the time of the application) information is likely to be out of date, incomplete and out of context. Further, the tendency to embellish employment history or to inadvertently misstate employer information (e.g., indicating Company A as the employer while actually working for placement agency Company B that has been assigned to Company A) can work against an applicant. Both of these scenarios can result in the Department of State obtaining information contradictory to the nonimmigrant or immigrant form and can create obstacles to obtaining the desired visa.

Accordingly, it is imperative that foreign nationals are cognizant of the information they are posting on their social media accounts regarding their residency and employment history, paying particular attention that information contained on the social media platforms is consistent with the information contained in the visa applications.


© 2019 Vedder Price

For more on visa application requirements, see the National Law Review Immigration Law section.